E.D. N.Y Discusses Split Re Correct Scrutiny Standard for Review of Gender-Based Affirmative Action Plans

Per U.S. v. New York City Bd. of Educ., --- F.Supp.2d ----, 2006 WL 2591394 (E.D.N.Y. Sep. 11, 2006):

Prior to Croson, it was clear that gender-based affirmative-action plans were subject to intermediate scrutiny, which required that such plans "serve important governmental objectives and ... be substantially related to achievement of those objectives." Califano v. Webster, 430 U.S. 313, 317 (1977) (quoting Craig v. Boren, 429 U.S. 190, 197 (1976)). Subsequent to Croson, the Sixth Circuit began subjecting gender-based affirmative-action plans to strict scrutiny. See Brunet v. City of Columbus, 1 F.3d 390, 404 ("Under the [post-Croson ] precedent in this Circuit, gender based affirmative action plans are subject to strict scrutiny when challenged under the Equal Protection Clause." (citing Conlin v. Blanchard, 890 F.2d 811 (6th Cir.1989); see also Long v. City of Saginaw, 911 F.2d 1192 (6th Cir.1990). The other circuits to have considered the issue have concluded that, notwithstanding Croson, gender-based affirmative-action plans remain subject to intermediate scrutiny. See Ensley Branch, 31 F.3d at 1580 ("Intermediate scrutiny remains the applicable constitutional standard in gender discrimination cases."); Contractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1001 (3d Cir.1993) ("We agree with the district court's choice of intermediate scrutiny to review the Ordinance's gender preference."); Coral Constr. Co. v. King County, 941 F.2d 910, 932 (9th Cir.1991) ("[W]e shall employ intermediate scrutiny to review King County's [Women-Owned Business Enterprise] program."); cf. Milwaukee County Pavers Ass'n v. Fiedler, 922 F.2d 419, 422 (7th Cir.1991) (assuming that Croson applied to gender-based affirmative action because state failed to argue that it did not, but noting that "Croson is about favoritism toward racial and ethnic groups, not about favoritism toward women"). The Second Circuit has recognized this circuit split, but has yet to weigh in on it. See Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 62 (2d Cir.1992) ("Croson may not apply to women-owned business enterprise programs, see Milwaukee County Pavers, 922 F.2d at 422, and the appropriate standard of review concerning gender-based set-asides remains unclear."). [FN51]

FN51. The Court recognizes that the plan at issue in Barhold was both race- and gender-conscious and that the Second Circuit nevertheless subjected the plan to strict scrutiny. Since, however, the court concluded that the plan survived the rigorous "narrowly tailored" standard, See 863 F.2d at 238, it did not have to address the possibility that a lesser standard might apply to affirmative action for women. Cf. Ensley Branch, 31 F.3d at 1580 (distinguishing prior case applying strict scrutiny to gender-based affirmative-action plan because "[w]e did not need to do [consider whether a less-exacting standard applied], given our holding that the plan satisfied even the searching Croson test").